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Filios Sazeides, Unsplash

The initial phase of New York City Local Law 18, also known as the Short-Term Rental Registration Law, went into effect in New York City on Tuesday, September 5th, 2023.  Enforcement of Local Law 18 is expected to significantly reduce the number of illegal, short-term rental listings – i.e. listings for less than thirty (30) consecutive days – available in New York City, especially on major online booking platforms such as Airbnb and VRBO. 

Under the New York City Multiple Dwelling Law, it is illegal to rent out your apartment and/or home for less than 30 consecutive days, except in very limited circumstances.  For a short-term rental to be legal under the Multiple Dwelling Law, (i) no more than two (2) paying guests may be hosted at a single time, (ii) the host must maintain primary occupancy and reside in the dwelling unit during the stay, and (iii) the paying guests must have access to all parts of the listing, what is referred to as a “common household.” 

Local Law 18, adopted by New York City on January 9, 2022, requires all legal, short-term rental listings to be registered with the Mayor’s Office of Special Enforcement (“OSE”), and prohibits hosts from processing transactions for short-term rental listings that are not validly registered with the OSE.  Local Law 18 also requires online booking platforms to verify – via an electronic system maintained by OSE – that a short-term rental listed on its online platform is validly registered with OSE and has a valid short-term rental registration number assigned by the OSE.  Online booking platforms and individual hosts are subject to civil penalties under Local Law 18 for any transaction where a fee is charged or received, directly or indirectly, by the online booking platform and/or host for an unregistered short-term rental listing.

A host and/or building owner can register a legal, short-term rental listing, by submitting an application through New York City’s Short-Term Rental Registration Portal (https://strr-portal.ose.nyc.gov/s/?language=en_US), along with a nominal, non-refundable application fee. Registration applications for short-term rental listings must be for units legally approved for residential use and covered by a valid Certificate of Occupancy, or similar occupancy document. The OSE has discretion to deny an application if its review of applicable building records discloses uncorrected violations issued by the Department of Buildings, Department of Housing Preservation and Development and/or the FDNY which relate to dangerous conditions for occupants.  The OSE will not approve any applications where more than two (2) paying guests may be hosted at a single time, where the host does not maintain primary occupancy and actually reside in the dwelling unit during the stay, or if the paying guests do not have access to all of the dwelling unit.

Building owners – including co-op and condo boards, corporations, mangers or agents – are permitted to elect to have their building placed on a separate “Prohibited Buildings” list maintained by OSE.  To opt-in, a building owner can submit an application through the Short-Term Rental Registration Portal to have their building placed on the “Prohibited Buildings” list. Local Law 18 requires OSE to deny any registration applications and/or requests for any buildings (and units in any buildings) that appear on the “Prohibited Buildings” list.  To be included on the “Prohibited Buildings” list, a building owner must certify that the leases and/or other occupancy agreements for all of the units in the building contain express language prohibiting short-term rentals.      

Notably, Local Law 18 exempts all Class B multiple dwellings – typically buildings such as, hotels, boarding houses, rooming houses, and dormitories.  Class B dwellings are exempt from Local Law 18 registration requirements, and owners of Class B multiple dwellings are not required to submit an application though the Short-Term Rental Registration Portal. Similarly, online booking platforms are not required to report transactions appearing on a list of exempt, Class B multiple dwellings maintained by the OSE and publicly available online.

According to the OSE, the main thrust of the initial enforcement phase of Local Law 18, “…will focus on collaborating with booking platforms to ensure they are using the city’s verification system, that all verifications are occurring correctly, and that the platforms stop processing unverified transactions.”

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Max Kukurudziak, Unsplash

On July 28, 2023, in response to three separate fires at Battery Energy Storage System (“BESS”) locations in New York, Governor Kathy Hochul announced the creation of an inter-agency fire safety working group.  The Fire Safety Working Group, to be comprised of the Division of Homeland Security and Emergency Services Office of Fire Prevention and Control, New York State Energy Research and Development Authority (NYSERDA), New York State Department of Environmental Conservation, Department of Public Service, and the Department of State.

The Fire Safety Working Group will conduct a root cause and emergency response analysis to evaluate and identify the cause and effect of the battery storage fires.  Beyond the cause of the fire, the focus will include evaluation of air monitoring results and other potential community impacts.  In addition, on-site inspections of energy storage facilities will be organized to examine the condition of batteries and verify on-site fire suppression equipment and emergency-response plans at operational BESS facilities.

The recommendations developed by the Fire Safety Working Group will be shared with the New York City Fire Department, National Fire Protection Association, International Code Council, the New York State Fire Prevention and Building Code Council and Underwriters Laboratories.

The fires in question occurred between May 31st and July 27th in Suffolk, Orange and Jefferson counties and come at a time when battery storage siting and development is rapidly expanding on Long Island. Growth of these systems is attributable in part to energy storage being identified as a critical component in the 2019 Climate Leadership and Community Protection Act.  The Act initially called for 3 GW of storage by 2030, a goal that ultimately increased to 6 GW of storage by 2030, enough to represent 20 percent of the peak electricity load of New York State. News of the fires triggered immediate scrutiny, including editorials calling for local boards to pause and revisit battery storage proposals and battery storage codes pending the results of the Fire Safety Working Group’s investigation.

The model Battery Energy Storage System Law developed by NYSERDA, and adopted almost verbatim by several Towns, includes a number of fire-safety provisions, including development of fire safety compliance plans, emergency operations plans, compliance with fire-related building and electric codes, and specific access parameters for local fire departments.  It will be interesting to follow the recommendations of the Fire Safety Working Group and how they impact local regulation of BESS facilities and the development of energy storage.

On April 4, 2023, the Town of Riverhead joined the growing list of Long Island municipalities to have adopted special zoning regulations for Battery Storage Energy Systems (or BESS) projects. The law, which was filed with the State and took effect on April 15, 2023, is codified in Chapter 301, Article LIID of the Town Code, appropriately titled “Battery Energy Storage Systems.” A copy of the adopted regulations is available by clicking the following link: Riverhead Bess

Similar to the laws adopted by other Long Island towns, Riverhead’s BESS regulations largely track the model law published by the New York State Energy Research and Development Authority (NYSERDA), with some notable highlights and distinctions. Riverhead’s regulations feature a familiar tiered system that divides projects into two categories: Tier I, which are projects that will generate up to 600kWh; and Tier II, which are projects that will generate more than 600kWh. Tier I projects are permitted in any zoning district in the Town and do not require a site plan or special permit. Tier II projects are permitted in the Town’s Industrial A and C Zoning Districts, but also in the Town’s Agricultral Protection and Residence A-80 Districts, with some added protections and conditions. In all cases, Tier II projects require both a Town Board special permit and site plan approval from the Town Planning Board. Additionally, like the Town of Southampton, Riverhead has designated a number of “avoidance areas” in which BESS projects are presumptively prohibited, unless the sponsor can demonstrate that the project will not degrade the historic, cultural, scenic, or environmental quality of the area, as the case may be.

Also familiar are several safety and quality of life provisions in the Code designed to ensure the safe commissioning, operation and decommissioning of projects. These provisions address operational standards, including fire safety, and potential impacts on neighboring properties, including noise and light mitigation, and buffering requirements.

Finally, Riverhead’s regulation contain some notable unique standards. For example, Tier II BESS projects on residentially-zoned properties must be located within 1,000 feet of an existing substation or a “Commercial Solar Energy Production System” (a solar farm). Additionally, Tier II BESS projects on industrially-zoned properties may share the site with other, unrelated principal uses.

With these new regulations in place, Riverhead is well-positioned for new BESS projects benefitting the Town and the east end region.

Grandfathered

Last month, in Cuffaro v Zoning Board of Appeals of the Village of Bellport (Index # 620453/2021), the Suffolk Supreme Court reinforced the existing and binding case law that a municipality’s issuance of a building permit to a similarly situated lot effectively sanctions the subdivision of that property by deed without the requisite subdivision approval.  In a strongly worded decision, the Court held that a municipality cannot rely on a supposed illegal subdivision as a basis for denying an application where it has otherwise sanctioned the subdivision by granting certificates of occupancy to its sister lot.

In Cuffaro, the Petitioners applied for a building permit to construct a single-family home on substandard lot known as 5 Gerard Street in the Incorporated Village of Bellport, New York. The Cuffaros’ lot of 30,000 square feet was created in 1978, when then-owners of a larger parcel sold off a portion of their larger lot, thereby creating two separate lots by deed. The Village Building Department denied the application because: (1) the subject property of did not conform to the Village Code’s 40,000 square foot minimum lot size and (2) was not approved in accordance with the Village’s subdivision laws, which required planning board approval for a subdivision. In response, Petitioners submitted to the Village, caselaw (Lund v Edwards, 118 AD2d 574 [2d Dept 1986] and other proof discovered through FOIL that the Village had issued five (5) certificates of occupancy for various improvements since the 1978 deed split.

Notably, no variances were sought by Petitioners, because they considered the subject property to be “grandfathered” as the Village had “sanctioned” the creation of the Petitioners’ lot by the granting of certificates of occupancy to the other lot created by the 1978 deed. Unlike a variance application, which involves an exercise of discretion, in New York it is well established that a nonconforming use that predates the enactment of a restrictive zoning ordinance is a vested right entitled to constitutional protection.

The instant matter bears a striking resemblance to facts discussed by the Court in Lund v. Edwards, 118 AD2d 574 (2 d Dept 1986).  In that case, the Village Building Inspector of the Village of Head-of-the-Harbor denied the petitioner’s application for a building permit to erect a single-family dwelling on her property. The crux of the matter turned on the fact that the basis for the denial by the ZBA was that the subject parcel “was part of a larger lot which had been ‘illegally’ subdivided, i.e., subdivided without the necessary approval of the Village Planning Board 11 years before.” Id. In overturning the decision of the Board, the Appellate Division held that the Board had ‘sanctioned’ the original subdivision by deed by the issuance of building permits for one of the two lots, whether or not it had complied with the subdivision regulations when created. As a result, the Court held that “the board cannot now utilize the alleged illegal subdivision as a ground for denying the application of the petitioner.” Id.

Another case with similar parallels cited by the Court in the Cuffarro decision was Shaughessy v. Roth, 204 AD2d 333 (2d Dep’t 1994). In that case, the Court stated, “Although no final subdivision map was ever filed, the Town subsequently issued a building permit to the owner of the larger, conforming parcel, and a single-family dwelling was built. Thus, the Town’s actions effectively sanctioned the subdivision, and the Town, at least in part, contributed to the creation of the petitioners’ difficulties, by allowing the creation of the substandard lot.”

Finding that the Village of Bellport does not exist as a sui generis entity but is subject to the laws and controlling precedents of this State, the Court in Cuffarro held that the Village’s issuance of five certificates of occupancy for one of the two parcels subdivided by deed, effectively sanctioned (“legalized”) the creation of both lots notwithstanding the lack a subdivision approval by the Village. As a result, the smaller lot created by deed does not require a lot area variance, and the Village cannot use the alleged “illegal” subdivision as grounds to deny the application for a building permit.

Take Away: Cuffaro continues to support Lund’s precedent that binds a municipality to recognize the legal separateness of a lot, created only by deed, if the municipality recognized one of the lots by the issuance of certificates of occupancy.

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micheile henderson, Unsplash

The New York Climate Leadership and Community Protection Act (“CLCPA”) established ambitious targets to transform New York’s energy generation and efficiency. The CLCPA was signed into law in 2019 with goals to achieve 100% zero-emission electric generation by 2040 and greenhouse gas emission reduction to 85% below 1990 levels by 2050, among others.  The clean energy investments contemplated by the CLCPA include $35 billion in large-scale renewable and transmission projects, $6.8 billion to reduce building emissions, $1.8 billion for solar and more than $1 billion for clean transportation initiatives. 

A concurrent goal of the CLCPA, is to relieve long-standing environmental justice burdens on disadvantaged communities by mandating a significant portion of investment in CLCPA projects to such communities.

Pursuant to CLCPA §75-0117:

State agencies, authorities and entities, in consultation with the environmental justice working group and the climate action council, shall, to the extent practicable, invest or direct available and relevant programmatic resources in a manner designed to achieve a goal for disadvantaged communities to receive forty percent of overall benefits of spending on clean energy and energy efficiency programs, projects or investments in the areas of housing, workforce development, pollution reduction, low income energy assistance, energy transportation and economic development, provided however, that disadvantaged communities shall receive no less than thirty-five percent of the overall benefits of spending on clean energy and energy efficiency programs, projects or investments and provided  further that this section shall not alter funds already contracted or committed as of the effective date of this section.

The CLCPA charged the Climate Justice Working Group, a 13-member assembly consisting of environmental justice community representatives from New York City, upstate urban communities, rural communities, the NYSDEC, NYSDOH, NYSERDA and NYSDOL (the “Working Group”), with defining criteria to identify disadvantaged communities. 

After a lengthy public comment period, the Working Group approved and adopted the final criteria and identified disadvantaged communities on March 27, 2023.  The criteria consisted of 45 indicators that centered on environmental and climate change burdens and risks, population characteristics and health vulnerabilities. Application of the criteria generated a list that totals over 1,700 communities across the state. 

Of the over 1,700 communities designated, Nassau and Suffolk Counties combine to account for 87 qualified disadvantaged communities.  Adding New York City and Westchester increases the downstate total to 664 communities, or approximately 38 percent, of the designated disadvantaged communities list. Notable communities on Long Island include Brentwood, Central Islip, Brookhaven, Shirley, Riverhead, Calverton, Uniondale, Hempstead and Freeport, among others. 

Considering the unprecedented clean energy funding combined with the 35% investment mandate, a designation by the Working Group as a disadvantaged community carries the potential for significant economic benefit: a genuinely green for green proposition.

Judge`s,Gavel,And,Law,Books.constitutional,Crisis

Following in the footsteps of the towns of Huntington, Babylon and East Hampton, the Town of Oyster Bay voted on March 7, 2023, to create a Bureau of Administrative Adjudication pursuant to Article 14-BB of the General Municipal Law (“GML”).  The bureau is an administrative tribunal that will process quality of life violations of the Town Code.  Under the GML, administrative tribunals can adjudicate “all code and ordinance violations regarding conditions which constitute a threat or danger to the public health, safety or welfare.”

Quality of life violations in the Town of Oyster Bay are currently processed in the District Court, which is located in the Town of Hempstead.  However, following the Town Board’s recent adoption of Local Law No. 2 of 2023 and Local Law No. 3 of 2023, the Town Attorney will now pursue enforcement of these violations in the soon-to-be-created Bureau of Administrative Adjudication. Once the bureau is up and running, code enforcers will continue to issue summons and violations, but they will be returnable before the administrative tribunal that will be located within the Town of Oyster Bay.

The bureau will be headed by a director, who shall be appointed by the Town Supervisor, with the advice and consent of the Town Board.  The director is empowered by the law to appoint at least three administrative law judges who can adjudicate violations that come before the bureau and impose monetary civil penalties only.  The bureau cannot handle misdemeanors or other criminal cases, which will continue to be processed in the District Court.

Unlike in criminal trials where prosecutors must prove guilt “beyond a reasonable doubt,” the burden of proof in an administrative proceeding is the lower “preponderance of the evidence” standard, which will make it easier for the prosecuting attorney to obtain a conviction at the bureau.  Defendants brought before the bureau are also not entitled to the same discovery rights that are afforded in District Court.  When the Town first sought to create an administrative tribunal in 2021, critics of the proposal argued that it was a misguided attempt to dilute the due process and discovery rights afforded by the State’s criminal justice system.

Members of the Town Board believe that creating the bureau and having it operate out of Town Hall will make it more convenient for residents charged with violations.  They also anticipate increased compliance because violators may be able to remedy violations with a visit to the building and planning departments, which are both located within the Town Hall complex.  Moreover, it will be more efficient for the Town because its attorneys and code enforcement officers will no longer have to travel with their files to and from District Court in Hempstead.

Although the legislation was adopted to create the bureau, a Director has not yet been appointed and no date has been set for the new Bureau of Administrative Adjudication to start hearing cases.

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Josh Withers, Unsplash

Last month, the State’s highest court, the Court of Appeals, upheld the Appellate Division’s decision annulling the New York State Department of Environmental Conservation (DEC) issuance of permits to Sand Land Corporation (“Sandland”) for renewal and expansion of sand mining operations at a 50-acre site in Southampton, New York and remanded the matter back to the DEC. The site, owned by Sandland, is a pre-existing sand mining site.

In Town of Southampton v. New York State Department of Envtl. Conservation, the question before the Court of Appeals was whether NYS Environmental Conservation Law (“ECL”) §23-2703(3) prohibits the processing of applications in Suffolk County for renewal and modifications where local zoning ordinances prohibit mining uses.

ECL §23-2703(3) Declaration of Public Policy, Subsection 3 states, “No agency of this state shall consider an application for a permit to mine as complete or process such application for a permit to mine pursuant to this title, within counties with a population of one million or more which draws its primary source of drinking water for a majority of county residents from a designated sole source aquifer, if local zoning laws or ordinances prohibit mining uses within the area proposed to be mined.” Suffolk County satisfies this criterion having a population of one million or more and drawing its primary source of drinking water from a sole source aquifer.

In 2019, the DEC interpreted ECL 23-2703(3) to apply to new applications only- not to expansion of existing mines. In March 2019, DEC issued both a renewal permit to allow mining on 34.5acres of the 50-acre site and a modification permit allowing an increase in depth of mining. The Town of Southampton, several neighboring landowners, and civic and environmental groups, commenced an Article 78 against Sandland and the DEC seeking to annul Sandland’s mining permit, because mining is prohibited in the zoning district where the property is located, ECL §23-2703 (3) applies and the DEC is prohibited from processing the application.

Although the Court of Appeals agreed that ECL 23-2703(3) must be read to recognize Sandland’s constitutionally protected rights as a legal pre-existing nonconforming use, the Court did not extend that right to mine to an indefinite depth. The Court found that “the dipositive question in determining whether the expansion that Sandland seeks is within the limits of its prior non-conforming use is whether Sandland manifested an intent to mine the additional acres and the expanded depth it sought in its permit applications, and the extent to which the Town recognized Sandland’s use of the parcel.”

The Court found in this case, there is no determination of the extent of Sandland’s prior non-conforming use and remanded it back to the Supreme Court to remand back to the DEC for further proceedings. Upon remand, the DEC must ascertain from the Town, whether Sandland’s proposed use is with the scope of its prior nonconforming use.

Takeaway: The State’s mining law limits the DEC on Long Island and will only permit Sandland to mine within the scope of its prior nonconforming use.

Took a walk on lunch break to create a collection of industry and “gas punk” type photos.
Patrick Hendry, Unsplash

            The Phase I Environmental Site Assessment (“ESA”) is the quintessential environmental diligence tool for transactions involving real property.  A Phase I ESA includes a site inspection and review of current and past uses and ownership, among other things, to evaluate actual and potential environmental conditions.  If performed in accordance with the All Appropriate Inquiry Rule (“AAI Rule”), a Phase I ESA serves as the initial step to establish affirmative defenses to potential liability imposed by the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”).

As outlined earlier in our prior post, ASTM Adopts New Phase I ESA Standard – Impact to Environmental Diligence and CERCLA Affirmative Defenses | Long Island Land Use and Zoning (lilanduseandzoning.com), ASTM updated and adopted a new Phase I ESA standard in late 2021.  Despite the adoption by ASTM, the legal diligence standard to satisfy the AAI Rule and the threshold criteria to qualify for affirmative defenses under CERCLA remained the historic ASTM E1527-13 standard.

After undergoing multiple rounds of public comment, the United States Environmental Protection Agency (“EPA”) issued a final rule on December 15, 2022 to adopt the ASTM E1527-21 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” (“New Phase I ESA Standard”).  EPA’s final rule confirmed the New Phase I ESA Standard was consistent with the statutory requirements to satisfy the AAI Rule, and thereby the baseline requirement to avail prospective purchasers of the innocent landowner, contiguous property owner and bona fide prospective purchaser defenses to CERLCA.  The New Phase I ESA Standard became effective on February 13, 2023.

In addition to authorizing the New Phase I ESA Standard, EPA’s final rule put a sunset on the historic ASTM E1527-13.  According to the final rule, reference to the historic ASTM E1527-13 as compliant will be removed from the AAI Rule one year following publication of the EPA final rule, or December 15, 2023.  However, the reference provision that will be added to the AAI Rule, reflecting the sunset, states that the historic ASTM E1527-13 shall remain valid, “until February 13, 2024…”   While the discrepancy in the period of applicability for the historic ASTM E1527-13 is something to be aware of when evaluating compliance with the AAI Rule, the New Phase I Standard represents best practices, and prospective purchasers should strongly consider employing the new standard, despite the lingering applicability of the historic standard.

The New Phase I Standard is more rigorous than the historic ASTM E1527-13 standard, broadening the scope of particular investigation and analysis. As highlighted in our earlier post, the new Phase I Standard modifies the scope of historical reviews for adjoining properties, expands title search standards, revises definitions for Recognized Environmental Conditions (“RECs”), Controlled RECs and Historic RECs, and provides for evaluation of emerging compounds like PFOA/PFAS, among several other procedural reporting and definitional clarifications. 

Requesting a Phase I ESA has become a routine pre-acquisition diligence item.  There is risk in relying on a non-compliant Phase I ESA, misinterpreting findings and conclusions, or failing to take appropriate action upon notice of an environmental condition. Knowledgeable environmental counsel can assist in navigating these issues and defining options to achieve specified outcomes.

It’s time to turn the page and close the chapter on the expiring ASTM E1527-13 as the recognized ESA standard.  Long live ASTM E1527-21!

The Huntington Town Board is currently seeking input from residents, businesses and others for a new plan for the redevelopment of the Melville Employment Center (“MEC”).  The new plan will build upon a prior plan that was adopted by the Town Board in 2016.  That plan – known as the Melville Employment Center Plan (“MECP”) – was adopted to help the area remain competitive as a major employment hub and enhance the town’s tax base.  It also sought to advance the goals and objectives of the town’s overall comprehensive plan by proposing a mix of land uses, including housing, offices, retail and restaurant uses.  According to Supervisor Ed Smyth, the area needs to be reimagined in light of the post-pandemic changes in business and employment practices that have left many buildings vacant.

After several measures proposed by the MECP were shot down by the Town Board in December 2021, the Board recently scheduled several “listening sessions” to solicit input from those who would be most impacted by redevelopment in the study area.  The study area includes the Route 110 corridor, which runs north-south through the hamlet of Melville, and is generally bounded by Pinelawn Road to the east, Walt Whitman Road to the west and the Huntington-Babylon town boundary to the south. It also includes parcels fronting on the South Service Road and those accessed by Spagnoli Road.

Vacancies in office uses in the Melville area rose sharply during the pandemic, and with the continuation of remote and hybrid work schedules, vacancy rates are not expected to improve in the near future.  According to a Cushman & Wakefield report that analyzed economic and commercial real estate activity on Long Island in the fourth quarter of 2022, office vacancies in Western Suffolk County continue to rise and currently stand at 17.2%. 

The Town Board encouraged residents, civic groups, organizations and agencies that may be impacted by future redevelopment in the MEC to attend a listening session to share their thoughts and opinions.  Sessions were held on December 8, 2022 and January 26, 2023, and additional sessions may be scheduled in the future.

According to the Town’s website, information about the sessions can be obtained from Supervisor Smyth’s office by calling (631) 351-3030.

For most people, the idea of “Green Energy” likely evokes images of solar panels and wind turbines. However, the movement toward renewable energy, and a more reliable and efficient power grid, involves many other forms of technology that may yet be unfamiliar to the average person. But as the push to expand Green Energy production grows, so too will the prevalence of the technologies needed to support the industry.

On Long Island, communities from Hempstead to Southold are witnessing the introduction of a previously unfamiliar form of Green-adjacent technology in the form of Battery Energy Storage Systems, or “BESS”. I refer to BESS facilities as “Green-adjacent” because, unlike wind and solar farms, they do not produce electricity of their own. Instead, they store it. So far, local reception of these uses is mixed.

What Are BESS?

BESS facilities generally consist of rows of rechargeable batteries housed in self-contained, interconnected storage units. BESS facilities typically operate by drawing surplus energy from the local power grid during periods of low usage and storing it for later distribution back into the grid during peak demand. However, they can also be used as direct storage for electricity produced by renewable energy production facilities, like wind and solar farms. In either case, BESS stabilize the local power grid by ensuring reliability during periods when the grid might otherwise experience a partial or total deficit in voltage, commonly known as “brownouts” and “blackouts”. Thus, proponents of BESS offer that these facilities can reinforce the local power grid not only on a daily or routine basis, but also during emergencies when demand is especially high or when electrical transmission from outside the local grid is severed.

BESS and Zoning

From a land use perspective, BESS facilities are a low-impact uses. Once a facility is constructed and operational, it requires no regular staffing, only routine maintenance. This results in virtually no traffic, and almost no need for onsite parking. The facilities can also be monitored remotely, which further reduces traffic, and onsite staffing and parking. Site lighting at BESS facilities is also largely unnecessary, except for security purposes. The absence of employees also means there is virtually no water consumption at BESS facilities, and commensurately, little to no sewage.

The only potentially significant planning concern associated with BESS facilities is noise generated by cooling fans. However, noise is not always a problem depending on the size and configuration of a project. In instances where noise may be an issue, the industry has implemented methods of noise mitigation, including the use of sound barriers and landscaping.

Naturally, not everyone is sold on BESS. Opponents of these facilities have raised concerns over the presence of highly flammable substances, such as from lithium-ion batteries, and possible air and groundwater contamination. Historically, concerns about such threats were resolved by zoning certain uses out of residential areas and restricting them to high-intensity industrial districts. However, that is not always feasible with BESS.

BESS facilities must connect to the local power grid through a substation with adequate capacity to accommodate the transmission between the BESS facility and the grid. Additionally, the greater the distance between a BESS facility and the substation, the less efficient the transmission will be. As a result, designing a viable BESS facility may require that a BESS facility be located in or near a residential district in some cases. This is certain to be the situation in more urbanized areas of Long Island, like western Nassau County, where there is high density of uses and districts in close proximity to one another. Thus, planning for the future of BESS facilities on Long Island will not be without its challenges.

Status of Local Regulations

To date, the Towns of Brookhaven, Huntington, Islip and Southampton are the only four of Long Island’s 13 towns to adopt zoning regulations for BESS facilities. Their respective regulations are summarized below. The Town of Riverhead Town Board very recently discussed a set of draft BESS regulations based on the model law published by the New York State Energy Research and Development Authority (NYSERDA) (available here: https://www.lilanduseandzoning.com/wp-content/uploads/sites/128/2023/01/NYSERDA-model-1.pdf). However, the future of that legislation is uncertain. Other towns, like the Town of Southold, are discussing possible moratoria on BESS facilities out of concern for potential environmental impacts and public safety.

  1. Town of Brookhaven

The Town of Brookhaven—Long Island’s largest town geographically, and second largest by population–enacted its BESS zoning regulations in February 2020. They are set forth in Sections 85-814 through 85-817 of the Town’s Zoning Code, which may be accessed here: https://www.lilanduseandzoning.com/wp-content/uploads/sites/128/2023/01/Brookhaven-4.pdf

Like the NYSERDA model, Brookhaven’s regulations separate BESS facilities into two tiers based on system capacity. Tier I projects are BESS facilities having capacity up to 599 kilowatt hours (kWh). They are permitted in the Town’s J-2 and J-5 Business Districts by special permit from the Brookhaven Planning Board, and are permitted by right in the Town’s L-1, L-2, and L-4 Industrial Districts. Tier II projects are BESS facilities having capacity of 600 kWh or greater. Unlike Tier I projects, Tier II projects are restricted to the L-1, L-2, and L-4 Industrial Districts.

Other notable requirements in Brookhaven’s BESS regulations include the minimum lot size for all BESS projects (40,000 sq. ft.); moderate to substantial setback requirements; and various other design standards affecting clearing, site lighting, and noise mitigation. The code further requires the approval of a decommissioning plan and the posting of decommissioning bond.

2. Town of Huntington

The Town of Huntington enacted its BESS zoning regulations in October, 2020. They are set forth in Section 198-68.3 of the Town’s Zoning Code, which may be accessed here: https://www.lilanduseandzoning.com/wp-content/uploads/sites/128/2023/01/Huntington-1.pdf.

Unlike Brookhaven, the Town of Huntington does not separate BESS projects into tiers. Instead, facilities that are two (2) acres or larger and within 200 ft. of a residential district require a Planning Board special permit. The code is otherwise fairly generous toward BESS projects, allowing them as principal permitted uses in all Light Industrial Districts (I-1 through I-4) in addition to the General Industrial (I-5) and Generating Station (I-6) Districts. BESS projects are also permitted as accessory uses in these districts, and by special permit in the General Business (C-6) District, if they occupy 2% or less of the project site and serve another building or facility on the same premises.

Like Brookhaven, the Town of Huntington’s BESS regulations include several design requirements affecting setbacks, height, site lighting, and noise mitigation. The approval of a decommissioning plan is also required.

3. Town of Islip

The Town of Islip enacted its BESS zoning regulations in July 2022. They are set forth in Section 68-456 of the Town’s Zoning Code, which may be accessed here: https://www.lilanduseandzoning.com/wp-content/uploads/sites/128/2023/01/Islip-1.pdf

The Town of Islip operates on a three-tier classification system, with Tier III being the largest (601 kWh or greater) followed by Tier II (81-600 kWh), and then Tier I (80 kwH or smaller). Tier I BESS are permitted in all zoning districts in the Town. Tier II BESS are permitted in the Town’s B-1, B-2, and B-3 Business District in addition to its Industrial Districts (excluding Industrial Business [I-B]). Tier III BESS are restricted to the Industrial 1 and Industrial 2 Districts only.

In addition to imposing design standards and decommissioning requirements similar to Brookhaven and Huntington, the Town of Islip code includes specific provisions regarding commissioning plans, project operations, and safety during a project’s lifetime.

4. Town of Southampton

The Town of Southampton enacted its BESS zoning regulations in January 2021. They are set forth in Section 330-162.21 of the Town’s Zoning Code, which may be accessed here: https://www.lilanduseandzoning.com/wp-content/uploads/sites/128/2023/01/Southampton-1.pdf

In Southampton (outside the incorporated villages), BESS facilities are permitted in all zoning districts, including residential districts, subject to varying standards depending on the district in question. Additionally, the Town sets aside specific “avoidance areas” having special environmental, historical, cultural, or recreational value where BESS facilities are prohibited.

Like the other towns discussed, Southampton imposes specific standards governing setbacks, site lighting, and noise mitigation, among other things. It also requires a decommissioning plan, and payment into a “decommissioning fund”.

Note: The attached regulations are presented as published on the General Codes website on the date of this post. Independent review of the current regulations of the governing town should be performed in connection with any future project through the General Codes website (https://www.generalcode.com/library/#) or at the town’s offices.